[guarantee]

Brownlow and McDermott v. Spark

Supreme Court of New South Wales

Burton J., 6 June 1836

Source: Sydney Gazette, 9 June 1836

Brownlow and McDermott, v. Edward Spark, Jun.  This was an action brought to recover the sum of £28 for goods sold to Frederick Myers upon the guarantee of the defendant.  The latter had pleaded the general issue, and non assumpsit.  It appeared that defendant was a settler upon the Hunter, and had let a public house to Myers in that neighbourhood,  In order that the latter might obtain such goods as he required, defendant sent down to Mr. Long in Sydney, a request that he would furnish Myers with goods, and at the same time enclosed a guarantee, in which he undertook to be responsible for the sum of £40, within the period of three months, that it was not meant as a continuous guarantee, and that the balance now sought was for good delivered since the time specified had elapsed.

Mr. Justice Burton said - there were two points which he did not think sufficiently clear  first, from the wording of the guarantee, he considered that defendant ought to have been apprised of its acceptance by the plaintiffs, instead of their keeping him in the dark; and second - was it meant as a continuous guarantee.  He should, therefore, reserve the points and direct a verdict to be entered for the plaintiff, with liberty to the defendant to to [sic] move for a nonsuit, in case the points should be decided in his favour.[1]

Notes

[1] On 11 July 1836, Dowling A.C.J., and Burton and Kinchela JJ decided to grant a non suit to the defendant.